Turrentine v. State

• Decision Date: 17 July 1998
• Docket Number: No. PC-97-654,PC-97-654
• Parties: 1998 OK CR 44 Kenneth Eugene TURRENTINE, Petitioner, v. STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 985

965 P.2d 985

1998 OK CR 44

Kenneth Eugene TURRENTINE, Petitioner, v. STATE of Oklahoma, Respondent.

No. PC-97-654.

Court of Criminal Appeals of Oklahoma.

July 17, 1998.

Terri L. Marroquin, Alexandra B. Fensterer, appearing pro hac vice, Capital Post-Conviction, Oklahoma Indigent Defense System, Norman, for Petitioner on appeal.

No response necessary from the State.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF, EVIDENTIARY HEARING AND DISCOVERY

LUMPKIN, Judge:

¶1 Petitioner Kenneth Eugene Turrentine was convicted of four (4) counts of First Degree Murder (21 O.S.1991, § 701.7), Case No. CF-94-2784, in the District Court of Tulsa County. In Counts I, II, and III the jury found the existence of three (3) aggravating circumstances and recommended the punishment of death. In Count IV, the jury found the existence of two (2) aggravating circumstances and recommended as punishment life imprisonment without the possibility of parole. This Court affirmed the convictions and sentences in Turrentine v. State, 1998 OK CR 33, 965 P.2d 955, 69 OBJ 2028 (1998). Petitioner filed his Original Application for Post-Conviction Relief in this Court on August 1, 1997, in accordance with 22 O.S.Supp.1995, § 1089.

¶2 Before considering Petitioner's claims, we must again reiterate the narrow scope of review available under the amended Post-Conviction Procedure Act. As we have said numerous times,

the Post-Conviction Procedure Act was neither designed nor intended to provide applicants another direct appeal. Walker v. State, 933 P.2d 327, 330 (Okl.Cr.1997) (interpreting Act as amended); Fox v. State, 880 P.2d 383, 384 (Okl.Cr.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995) (same conclusion under Act before amendments). The Act has always provided petitioners with very limited grounds upon which to base a collateral attack on their judgments. Accordingly, claims which could have been raised in previous appeals but were not are generally waived; and claims raised on direct appeal are res judicata. Thomas v. State, 888 P.2d 522, 525 (Okl.Cr.1994), cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Castro v. State, 814 P.2d 158, 159 (Okl.Cr.1991), cert. denied, 502 U.S. 1063, 112 S.Ct. 947, 117 L.Ed.2d 116 (1992).

Conover v. State, 942 P.2d 229, 230 (Okl.Cr.1997). These procedural bars still apply under the amended Act. We have noted the new Act makes it even more difficult for capital post-conviction applicants to avoid procedural bars. Walker, 933 P.2d 327, 331 (Okl.Cr.), cert. denied, --- U.S. ----, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Under 22 O.S.Supp.1995, § 1089(C)(1), only claims which "[w]ere not and could not have been raised" on direct appeal will be considered. A capital post-conviction claim could not have been raised on direct appeal if (1) it is an ineffective assistance of trial or appellate counsel claim which meets the statute's definition of ineffective counsel; or (2) the legal basis of the claim was not recognized or could not have been reasonably formulated from a decision of the United States Supreme Court, a federal appellate court or an appellate court of this State, or is a new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State. 22 O.S.Supp.1995, §§ 1089(D)(4)(b), 1089(D)(9). Should a Petitioner meet this burden, this Court shall consider the claim only if it "[s]upports a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent." 22 O.S.Supp.1995, § 1089(C)(2). As we said in Walker,

The amendments to the capital post-conviction review statute reflect the legislature's intent to honor and preserve the legal principle of finality of judgment, and we will narrowly construe these amendments to effectuate that intent. Given the newly refined and limited review afforded capital post-conviction applicants, we must also emphasize the importance of direct appeal as the mechanism for raising all potentially meritorious claims. Because the direct appeal provides appellants their only opportunity to have this Court fully review all claims of error which might arguably warrant relief, we urge them to raise all such claims at that juncture.

Walker, 933 P.2d at 331 (footnote omitted, emphasis in original). We now turn to Petitioner's claims.

¶3 Propositions I, II, and IV were raised in the direct appeal, therefore further consideration is barred by res judicata. 22 O.S.Supp.1995, § 1089(C)(1). See also Smallwood v. State, 937 P.2d 111, 115, n. 3 (Okl.Cr.1997). In Proposition I, Petitioner asserts prosecutorial misconduct deprived him of a fair trial. ¹ In Propositions II and IV, he argues he was denied the effective assistance of trial counsel in the guilt and sentencing stages of trial, respectively.

¶4 Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record. 22 O.S.Supp.1995, § 1089(D)(4)(b)(1). The statutory phrase "fact-finding outside the direct appeal record" was never meant to negate the principle of waiver. McGregor v. State, 935 P.2d 332, 335 (Okl.Cr.), cert. denied, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997). This Court may not review post-conviction claims of ineffective assistance of trial counsel if the facts generating those claims were available to the direct appeal attorney and thus either were or could have been used in the direct appeal. Walker, 933 P.2d at 332. The mere absence of a claim from the direct appeal record is not sufficient: the claim is still waived if the facts contained in it were available to the direct appeal attorney and could have been raised on direct appeal. Id.

¶5 In Proposition II, Petitioner contends he was deprived of his rights to due process and his right to counsel by trial counsel's ineffectiveness in investigation, preparation and presentation of his case in the guilt stage of his trial. Petitioner asserts this claim was not and could not have been raised on direct appeal as it relies on evidence outside the trial record and appellate counsel had neither the resources nor knowledge to conduct an extra-record investigation. Specifically, he contends trial counsel was ineffective for failing to request or put on evidence in support of a manslaughter instruction. However, the record shows trial counsel did request a manslaughter instruction and the trial court's refusal to give such an instruction was addressed on direct appeal. This claim does not depend on facts outside the record, therefore it is not properly before us.

¶6 Petitioner also contends trial counsel was ineffective for his lack of preparedness, in part, because he failed to object to the last minute endorsement of State's witness Officer Gina Kepler. The issue of the endorsement was raised under a claim of prosecutorial misconduct on direct appeal. We addressed the issue and found no reversible error. Consideration of this issue under the auspices of ineffective assistance of trial counsel for failing to object to the endorsement of Officer Kepler does not depend on facts outside the record on appeal. Therefore, the claim is not properly before us.

¶7 Petitioner further argues trial counsel's lack of preparedness was demonstrated by his admission that he was unclear on the facts, by his misstating facts in a way damaging to Petitioner, and by failing to challenge the State on the facts they allegedly misrepresented, and failing to compare the physical and eye witness statements with what Petitioner claimed occurred. He also asserts trial counsel conceded guilt without Petitioner's consent or waiver, and that counsel failed to challenge the State's motion in limine seeking to exclude certain defense experts from testifying. In Proposition IV, Petitioner argues he was denied effective assistance of trial counsel in the second stage by counsel's failure to investigate, develop, and present mitigation evidence of physical, alcohol, and drug abuse.

¶8 The facts upon which these claims in Propositions II and IV are based are contained in the record or could have been available to direct appeal counsel such that the arguments could have been raised in the direct appeal. Because Petitioner's claims of trial counsel ineffectiveness do not turn on facts unavailable at the time of his direct appeal, he has failed to meet the conditions for review of those claims on the merits and therefore review of the claims is barred. See Scott v. State, 942 P.2d 755, 760 (Okl.Cr.1997); Braun v. State, 937 P.2d 505, 511 (Okl.Cr.1997).

¶9 Propositions III and V are waived as they were not raised on direct appeal but could have been. In Proposition III, Petitioner claims there is a probability that he was not competent to stand trial. He argues that his medical records created a bona fide doubt as to his competency to stand trial, that the county sheriff's office did not turn over all requested jail records, that the prosecution had a duty to disclose all of the county jail records, and that the jail records would have proven favorable and material to his defense. ² In Proposition V he asserts the trial court improperly excluded evidence of his mental state at the time of the commission of the murders.

¶10 Claims of ineffective assistance of appellate counsel are raised in Propositions I, II, III, IV, and V. Essentially, Petitioner argues that to the extent any of the propositions presented in this post-conviction application either (1) could have been raised on direct appeal but were not or (2) were raised in a manner different than that raised by post-conviction counsel, he was denied the effective assistance of appellate counsel.

¶11 In Walker, we set forth a three-pronged test to review claims of ineffective assistance of appellate counsel...